At some point—hopefully in the not-too-distant future—we will have a vaccine for COVID-19. When that occurs, should employers require employees to be inoculated as a condition for returning to work or remaining employed?
Many employers, to guard against liability, will require employees to be vaccinated to protect others from getting sick at work. Other employers, like people who are anti-vaxxers, will not require shots knowing they are protected from litigation based on the workers compensation laws which generally preclude employees from suing their employers in court.
This is not the first time in our history where society has had to deal with a pandemic. A little over ten years ago, to a much lesser extent, we dealt with the H1N1 virus. At that time, the United States Equal Employment Opportunity Commission (“EEOC”) issued a Guidance which, as its name suggests, is not a law or regulation. With regard to that virus, the EEOC suggested that employers could require employees to be vaccinated if there were carveouts for people to object based on religious grounds under Title VII of the Civil Rights Act of 1964, or because they had an underlying medical condition under the Americans with Disabilities Act (“ADA”).
That Guidance, which was recently reissued to address COVID-19, also makes clear, however, that an employer only has to provide a reasonable accommodation if it does not impose an undue hardship on the employer, and the accommodation does not impose a direct threat to the health or safety of other employees or the general public. The hardship argument obviously is more difficult for an employer to meet than the direct threat argument because, under the circumstances involving COVID-19, most people would readily agree that failing to get vaccinated could pose a direct health threat. In fact, the Guidance indicates that whether there is a direct threat depends on the severity of the illness and points out that the Center for Disease Control already has determined that COVID-19 meets the standard.
While we currently do not know whether the EEOC will issue a new Guidance under the ADA or Title VII relating to COVID-19, it is likely that any new Guidance would follow the EEOC’s previous pronouncement concerning the H1N1 virus. The existing Guidance states that employers covered by the ADA cannot compel employees to take the influenza vaccine regardless of their medical condition or religious beliefs. It further states that, “[g]enerally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine.”
At this time, the best advice—when the vaccine is finally here—is to strongly encourage all employees to get vaccinated or, if the employer wants to mandate it, there should be carveouts based upon employees’ preexisting medical conditions and religious beliefs.